Cordero v. Corbisiero

• Decision Date: 04 June 1992
• Citation: 587 N.Y.S.2d 266,599 N.E.2d 670,80 N.Y.2d 771
• Parties: , 599 N.E.2d 670 In the Matter of Angel CORDERO, Jr., Appellant, v. Richard CORBISIERO, Jr., as Chairman of the New York State Racing and Wagering Board, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 266

587 N.Y.S.2d 266

80 N.Y.2d 771, 599 N.E.2d 670

In the Matter of Angel CORDERO, Jr., Appellant, v. Richard CORBISIERO, Jr., as Chairman of the New York State Racing and Wagering Board, et al., Respondents.

Court of Appeals of New York.

June 4, 1992.

Alan D. Levine and Joseph A. Faraldo, Kew Gardens, for appellant.

Robert Abrams, Atty. Gen. (Arnold D. Fleischer and Jerry Boone, Albany, of counsel), for respondents.

OPINION OF THE COURT MEMORANDUM.

The judgment of the Appellate Division, 170 A.D.2d 216, 565 N.Y.S.2d 109, should be modified, without costs, by annulling so much of respondent's determination as directed that the penalty be served during Saratoga racing days, and the matter should be remitted to respondent Board for further proceedings in accordance with this memorandum.

As framed by the parties, the controlling question in this case is whether respondent's so-called "Saratoga policy"--which requires that, following an administrative appeal, a suspension imposed for an infraction committed at the Saratoga racetrack be served at the Saratoga meet the following year--has the attributes of a "rule" as that term is defined by State Administrative Procedure Act § 102(2)(a)(i). The parties agree that, if it has such attributes, the Saratoga policy could not be applied in this case because it was not formally promulgated by respondent pursuant to the rule-making procedures set forth in State Administrative Procedure Act § 202. Significantly, no argument has been made that the procedural requirements of State Administrative Procedure Act § 202 are inapplicable to a policy, like this one, which was formulated by the Board in its adjudicatory capacity (cf., National Labor Relations Bd. v. Bell Aerospace Co., 416 U.S. 267, 290-295, 94 S.Ct. 1757, 1769-1772, 40 L.Ed.2d 134; Securities Commn. v. Chenery Corp., 332 U.S. 194, 202, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995).

The Saratoga policy, according to the Board's brief on appeal, applies "to every jockey * * * who elect[s] to race at Saratoga, commit[s] an infraction there, and unsuccessfully appeal[s] to the Board." Such a policy seems clearly to fit the definition of what constitutes a rule, i.e., a fixed, general principle applied without regard to the facts and circumstances of the individual case (see, Matter of Roman Catholic Diocese v. New York State Dept. of Health, 66 N.Y.2d 948, 951, 498 N.Y.S.2d 780, 489 N.E.2d 749). The Board argues, nonetheless, that the Saratoga policy does not fit the definition of a rule because it only affects the implementation of a penalty, not the jockey's conduct.

We reject this argument. The Saratoga policy does not relate to the penalty as such; it does not purport to control the Board's discretion as to what the suspension should be for a particular infraction. Rather, according to the Board's own description of the policy in this case, it establishes a mandatory procedure that pertains only to when and where a Saratoga suspension must be served in...